Paul Parker, Law and Politics Book Review Editor
In June of 2013 I put out a call for reviewers for a symposium on “The Rule of Law in a Post 9/11 World.” The call noted that “LPBR has several titles that allow us to explore challenges to the ideals and workings of liberal democracies posed by war, terrorism, torture, the outsourcing of military services, and international criminal tribunals.” The response from potential reviewers was strong, and we were able to commission sixteen reviews. Reviewer circumstances and the vagaries of the mail led to the completion of thirteen.
Tamanaha (2004) claimed three characteristics for the rule of law: limited government (restraint of government); formal legality (known law, publicly applied); and a government of laws (with requisite interpretation best done by independent, but constrained, judges). However, in international relations, Realists argue that the security of the nation state is the central goal, to which all other goals (such as human rights and democratic institutions) are subordinate. The commands of the sovereign are law. In wartime, this security imperative becomes even more apparent. Three books explore this at the more theoretical level: Conor Gearty’s LIBERTY AND SECURITY, Mary Ellen O’Connell’s WHAT IS WAR: AN INVESTIGATION IN THE WAKE OF 9/11, and Keiichiro Okimato’s THE DISTINCTION AND RELATIONSHIP BETWEEN JUS AD BELLUM AND JUS IN BELLUM.
War provides an occasion to act secretly and to dismiss restraints on leaders’ authority. Several titles consider the political responses to security concerns. Cian Murphy’s EU COUNTERTERRORISM LAW: PREEMPTION AND THE RULE OF LAW and Gilliom and Monahan’s SUPERVISION: AN INTRODUCTION TO THE SURVEILLANCE SOCIETY challenge western liberal concepts of individualized suspicion and retrospective punishment. Two other books, THE EU AND GLOBAL POLICY EMERGENCIES (Antoniadis, Schultze and Spaventa), and CONGRESS AND THE POLITICS OF NATIONAL SECURITY (Auerswald and Campbell’s), examine policy responses by representative assemblies. Stephen Griffin’s LONG WARS AND THE CONSTITUTION and Fleur Johns’ NON-LEGALITY IN INTERNATIONAL LAW: UNRULY LAW continue the first section’s concerns with limits on authority, and limits of law.
Realists are countered by liberal internationalists, and social constructivists, both of whom argue that norms and institutions can reduce state wrongdoing. A final group of titles examines efforts to grapple with rule of law violations. EXAMINATION OF TORTURE REFORM IN THE UNITED STATES, FRANCE, ARGENTINA AND ISRAEL (Carey), THE RISE AND FALL OF WAR CRIME TRIALS FROM CHARLES I TO BUSH II (Smith), and TRANSITIONAL JUSTICE (Williams, Nagy and Elster) reveal mixed success of countries willing to hold accountable those who violated rule of law norms. Elberling addresses the response of the international community to rule of law violations, in THE DEFENDANT IN INTERNATIONAL CRIMINAL PROCEEDINGS: BETWEEN LAW AND HISTORIOGRAPHY. Finally, Gibbs' CONSTITUTIONAL LIFE AND EUROPE’S AREA OF FREEDOM, SECURITY AND JUSTICE brings us around to the begining, considering how cross national cooperation can occur in an era when security is considered a "super public good."
Tamanaha, Brian Z. 2004. ON THE RULE OF LAW: HISTORY, POLITICS, THEORY. Cambridge University Press.